Attorneys for other outlets raised additional concerns. Both David McCraw, assistant general counsel for The New York Times, and Jason Conti, associate general counsel for Dow Jones, mentioned an ongoing effort to gain routine access to motion papers and other court documents as the commission’s proceedings are underway. Public access to the docket is taken for granted in civilian courts, but not in courts-martial, said McCraw—and, so far, military practice has prevailed at Gitmo. They and other news organizations have pressed this case before, but it hasn’t been resolved.
The records issue points to the common thread in all these disputes: a struggle over
whether the logic of civilian courts, in which there’s a presumption toward access and a right to appeal, or military environments, in which local commanders wield authority, should prevail at Guantanamo.
“What we have is two different world views,” Schulz said Tuesday. “The military is used to having complete and total control of what happens on military bases.” That’s an expectation that’s fostered by the physical circumstances at Guantanamo—reporters depend on the Defense Department for transportation to and from the base—but that is inconsistent with the statutory and constitutional guarantees of a free press at the commissions.
That’s why, in addition to resolving specific issues, the news organizations are hoping to establish due process provisions for future disputes, such as a requirement for factual findings by a military judge before any action—like disciplining a reporter, or trashing photos—is taken. (After the four reporters were barred, many press observers noted that it was the Pentagon’s public affairs shop—not the presiding military judge—that imposed the ban; the appeals went to higher-ranking public-affairs officials.)
Given the history of unresolved complaints, you might think there’s little reason to expect change. But the lawyers, at least, are hopeful that by presenting a united front, and by taking their grievances to the Pentagon’s attorneys rather than the brass, they’ll do well this time around. “We’re optimistic that the lawyers at the Department of Defense understand our concerns,” Schulz said. Come August, we should know whether that optimism was well-placed.